This article argues that the only relevant arbiter of federal law for clearly establishing federal rights is the Supreme Court of the United States. To say otherwise puts an onerous requirement on state and local officials by requiring them to be familiar with the law of their state and other states; the law of their circuit and other circuits; in addition to the law of the Supreme Court. No reasonable official could be expected to keep current on the developments of fifty states, thirteen circuits, and nine territories and associated states on top of the developments of the Supreme Court. If the Supreme Court cannot be the only arbiter of clearly established federal law, however, then only the official’s home circuit should supplement the inquiry.
I. INTRODUCTION AND HISTORY OF 42 U.S.C. § 1983 (2012)
In 1871, the Forty-Second Congress enacted Section 1 of the Klu Klux Klan Act, “[a]n Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes.”4 Congress passed Section 1 of the Act pursuant to the authority vested in it by Section 5 of the Fourteenth Amendment.5 In part, the Fourteenth Amendment prohibits states from “depriv[ing] any person of life, liberty, or property, without due process of law.”6 Although subsequently amended and codified at 42 U.S.C. § 1983 (2012),7 the statute’s
